Reevaluating publicly available data under the DPDPA Act 2023: a constitutional challenge

This article interrogates the constitutional validity of Section 3(c)(ii) of the Digital Personal Data Protection Act 2023, which exempts "publicly available" personal data from the Act's scope. The provision is assessed against the rights to privacy and equality under the Indian Constitution. Anchored in the unfounded assumption that publicly accessible data falls outside the realm of privacy, it constructs a hierarchy between public and non-public data. This approach contradicts the Supreme Court's privacy jurisprudence. The provision fails the proportionality test, as it grants broad discretion to process publicly available data in virtually any manner, without adequate safeguards. Such unchecked processing can result in downstream harms, violating the right to privacy. Additionally, we argue that Section 3(c)(ii) violates equality by creating an arbitrary and irrational classification between publicly and non-publicly accessible data. To remedy these constitutional defects, we argue that the exemption should be reframed as a legitimate use ground.